United States District Court, D. South Dakota, Southern Division
REPORT and RECOMMENDATION MOTION FOR BILL OF PARTICULARS OR IN THE ALTERNATIVE TO DISMISS, DOC.
JOHN E. SIMKO, District Judge.
Pending is Defendant Schrader's Motion for a Bill of Particulars or in the Alternative to Dismiss (Doc. 40). The trial is currently scheduled for Tuesday, August 5, 2014. After careful consideration of the parties' written submissions, the court makes the following:
It is respectfully recommended that Defendant's Motion to Dismiss be DENIED and the Bill of Particulars be GRANTED in part.
Defendant is charged in an Indictment with Conspiracy to Distribute a Controlled Substance in (Cocaine) violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(C) and 846. The pending Motion was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Judge Schreier's Standing Order dated March 18, 2010.
Schrader is charged along with four other co-defendants in a four-count Indictment. Schrader is charged in Count I with Conspiracy to Distribute a Controlled Substance (Cocaine). The date alleged for Count I is "beginning at a time unknown but no later than on or about 2005 and continuing to on or about the date of this Indictment..." The drug quantity alleged in Count I is "a detectable amount of Cocaine..." Schrader moves to dismiss the Indictment, or in the alternative for a bill of particulars.
1. Motion to Dismiss; Sufficiency of the Indictment.
Schrader asserts that because the Indictment alleges a beginning date of the alleged conspiracy as "unknown but no later than on or about 2005..." it violates the five year statute of limitations found at 18 U.S.C. § 3282 and should be dismissed. She further asserts the Indictment is too vague because it fails to identify an amount of the controlled substance allegedly distributed. The basic requirements for the contents of an indictment are found at Fed. R. Crim. P.7(c)(1) which states in relevant part:
Rule 7. The Indictment and the Information
(c) Nature and Contents.
(1) In General. The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government.... For each count, the indictment or information must give the official or customary citation of the statute, rule, ...